UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FATHY M.A. SALEH; GODWIN O. 

MBAGWU,

Plaintiffs-Appellees,

v.

JANESHWAR UPADHYAY,

Plaintiff,

v.

EDDIE MOORE, JR., in his individual

capacity and in his official capacity

as President of Virginia State

University; MARTHA DAWSON, in her

individual capacity and in her

official capacity as Provost of

Virginia State University; LORENZA

W. LYONS, in his individual capacity  No. 99-2137

and in his official capacity as Dean

of the School of Agriculture,

Science and Technology of Virginia

State University; FLORENCE S.

FARLEY, in her individual capacity

and in her official capacity as

Professor of Virginia State

University; THOMAS H. EPPS, in his

individual capacity and in his

official capacity as Chairperson of

the Department of Chemistry,

Director of the MBRS Program and

Associate Professor at Virginia

State University,

Defendants-Appellants,

and 
VIRGINIA STATE UNIVERSITY; GERALD 

Z. DEMERS, in his individual

capacity and in his official capacity

as Chair of the Department of

Engineering Technology of Virginia

State University; EDWARD J. MAZUR,

in his individual capacity and in his

official capacity as Vice President

of Administration, Business and

Finance of Virginia State

University; RICHARD BOOKER, in his

individual capacity and in his

official capacity as Director of

Extension Services of Virginia State

University; REGINA KNIGHT MASON,

in her individual capacity and in her 

official capacity as Assistant

Professor at Virginia State

University and in her individual

capacity and her official capacity as

Interim Chairperson of the

Department of Life Sciences at

Virginia State University; WINFREY

S. CLARKE, in his individual

capacity and in his official capacity

as Associate Dean for Agriculture

and Director of Research of the

School of Agriculture, Science and

Technology of Virginia State

University,

Defendants. 

2 SALEH v. UPADHYAY
FATHY M.A. SALEH, 

Plaintiff-Appellant,

and

GODWIN O. MBAGWU; JANESHWAR

UPADHYAY,

Plaintiffs,

v.

EDDIE MOORE, JR., in his individual

capacity and in his official capacity

as President of Virginia State

University; MARTHA DAWSON, in her

individual capacity and in her

official capacity as Provost of

Virginia State University; LORENZA

W. LYONS, in his individual capacity  No. 99-2188

and in his official capacity as Dean

of the School of Agriculture,

Science and Technology of Virginia

State University; FLORENCE S.

FARLEY, in her individual capacity

and in her official capacity as

Professor of Virginia State

University;

Defendants-Appellees,

and

VIRGINIA STATE UNIVERSITY; THOMAS

H. EPPS, in his individual capacity

and in his official capacity as

Chairperson of the Department of

Chemistry, Director of the MBRS 

SALEH v. UPADHYAY 3
Program and Associate Professor at 

Virginia State University; GERALD

Z. DEMERS, in his individual

capacity and in his official capacity

as Chair of the Department of

Engineering Technology of Virginia

State University; EDWARD J.

MAZUR, in his individual capacity

and in his official capacity as Vice

President of Administration,

Business and Finance of Virginia

State University; RICHARD BOOKER,

in his individual capacity and in his

official capacity as Director of

Extension Services of Virginia State

University; REGINA KNIGHT MASON,

in her individual capacity and in her 

official capacity as Assistant

Professor at Virginia State

University and in her individual

capacity and her official capacity as

Interim Chairperson of the

Department of Life Sciences at

Virginia State University; WINFREY

S. CLARKE, in his individual

capacity and in his official capacity

as Associate Dean for Agriculture

and Director of Research of the

School of Agriculture, Science and

Technology of Virginia State

University,

Defendants. 

4 SALEH v. UPADHYAY
FATHY M.A. SALEH; GODWIN O. 

MBAGWU,

Plaintiffs-Appellees,

and

JANESHWAR UPADHYAY,

Plaintiff,

v.

EDDIE MOORE, JR., in his individual

capacity and in his official capacity

as President of Virginia State

University; MARTHA DAWSON, in her

individual capacity and in her

official capacity as Provost of

Virginia State University; LORENZA

W. LYONS, in his individual capacity  No. 00-1744

and in his official capacity as Dean

of the School of Agriculture,

Science and Technology of Virginia

State University; FLORENCE S.

FARLEY, in her individual capacity

and in her official capacity as

Professor of Virginia State

University; THOMAS H. EPPS, in his

individual capacity and in his

official capacity as Chairperson of

the Department of Chemistry,

Director of the MBRS Program and

Associate Professor at Virginia

State University,

Defendants-Appellants,

and 

SALEH v. UPADHYAY 5
VIRGINIA STATE UNIVERSITY; GERALD 

Z. DEMERS, in his individual

capacity and in his official capacity

as Chair of the Department of

Engineering Technology of Virginia

State University; EDWARD J. MAZUR,

in his individual capacity and in his

official capacity as Vice President

of Administration, Business and

Finance of Virginia State

University; RICHARD BOOKER, in his

individual capacity and in his

official capacity as Director of

Extension Services of Virginia State

University; REGINA KNIGHT MASON,

in her individual capacity and in her 

official capacity as Assistant

Professor at Virginia State

University and in her individual

capacity and her official capacity as

Interim Chairperson of the

Department of Life Sciences at

Virginia State University; WINFREY

S. CLARKE, in his individual

capacity and in his official capacity

as Associate Dean for Agriculture

and Director of Research of the

School of Agriculture, Science and

Technology of Virginia State

University,

Defendants. 

Appeals from the United States District Court

for the Eastern District of Virginia at Richmond.

Robert E. Payne, District Judge.

(CA-97-460)

6 SALEH v. UPADHYAY
Argued: November 2, 2000

Decided: May 31, 2001

Before WIDENER and KING, Circuit Judges, and

Margaret B. SEYMOUR, United States District Judge for the

District of South Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Bradley Brent Cavedo, SHUFORD, RUBIN & GIBNEY,

P.C., Richmond, Virginia, for Appellants. Samuel M. Brock, III,

MAYS & VALENTINE, L.L.P., Richmond, Virginia, for Appellees.

ON BRIEF: Robert A. Dybing, SHUFORD, RUBIN & GIBNEY,

P.C., Richmond, Virginia, for Appellants. James S. Crockett, Jr.,

Richard F. Hawkins, III, MAYS & VALENTINE, L.L.P., Richmond,

Virginia; Beverly C. Powell, Mark E. Herrmann, EURE, KINCER &

BELL, P.C., Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

These appeals were consolidated for oral argument pursuant to

U.S. Ct. of App. 4th Cir. Rule 12(b). Appeals Nos. 99-2137 and 99-

2188 XAP involve the merits of the underlying employment discrimination actions. Appeal No. 00-1744 involves the issue of attorneys’

fees. We address the appeals on the merits first, since our disposition

SALEH v. UPADHYAY 7
of the issues presented influences our determination of the appropriate

award of attorneys’ fees. 

I.

Appellees Fathy M. A. Saleh (Saleh) and Godwin O. Mbagwu

(Mbagwu) (together "Appellees"), tenured professors at Virginia State

University (VSU), brought employment discrimination actions

against several VSU administrators, including the University President and Provost, in their individual capacities. Both Saleh and

Mbagwu alleged race and national origin discrimination under 42

U.S.C. §§ 1981 and 1983, conspiracy to interfere with their civil

rights under 42 U.S.C. § 1985, and state law claims for conspiracy to

injure them in their reputation, trade, business, or profession under

Va. Code Ann. §§ 18.2-499 & 500. Saleh also alleged retaliation for

the exercise of First Amendment Rights under 42 U.S.C. § 1983, state

law claims for tortious interference with contracts allegedly inuring

to his benefit, and defamation. Appellees claimed that, because of

their race and national origin, they were given lower annual evaluations and correspondingly lower annual raises from 1994 to 1998, and

were denied other professional opportunities incident to their employment at VSU.1

The cases were consolidated by the district court for discovery and

trial. Appellants Eddie N. Moore, Jr. (Moore), President of VSU; Dr.

Martha Dawson (Dawson), University Provost; Lorenza W. Lyons

(Lyons), Dean of VSU’s School of Agriculture, Science and Technology; Dr. Florence S. Farley (Farley), Professor of Psychology; and

Dr. Thomas H. Epps (Epps), Chairperson of the Chemistry Department, each moved for summary judgment as to all of Appellees’ claims.2

1Two other VSU professors brought related claims against VSU

administrators; however, their claims are not a part of this appeal. 

2Farley was named as a defendant in Saleh’s case only. Epps was

named as a defendant in Mbagwu’s case only. Both Saleh and Mbagwu

sued Moore, Dawson, and Lyons. Saleh named three other VSU administrators as defendants: Gerald Z. Demers, Chairperson of the Department

of Engineering Technology; Edward Mazur, Vice President of Administration, Business and Finance; and Richard Booker, Director of Extension Services. The district court granted the summary judgment motions

of Mazur and Booker and dismissed them as defendants. Saleh’s discrimination and retaliation claims against Demers were presented to the jury

and a verdict was returned in Demers’ favor. 

8 SALEH v. UPADHYAY
The district court granted summary judgment as to Appellees’ conspiracy claims under federal and state law, as to Saleh’s tortious interference and defamation claims, and as to Mbagwu’s race

discrimination claims. The district court denied summary judgment as

to the national origin discrimination claims under § 1983 and as to

Saleh’s race discrimination and retaliation claims under § 1983. The

district court determined that the underlying factual allegations were

subject to Virginia’s two-year statute of limitations. However, the district court found that evidence respecting the time-barred allegations

was relevant to prove discriminatory intent as to the claims surviving

summary judgment. 

The matter was tried before a jury. The jury rejected Saleh’s

national origin and racial discrimination claims, but found that

Moore, Dawson, Lyons, and Farley had retaliated against him. The

jury awarded Saleh $97,769.00 in compensatory damages and

$19,580.00 in punitive damages. In Mbagwu’s case, the jury found

that Moore, Dawson, Lyons, and Epps had discriminated against

Mbagwu on the basis of his national origin. The jury awarded

Mbagwu $194,829.00 in compensatory damages and $35,714.00 in

punitive damages. 

Appellants moved at the conclusion of trial for judgment as a matter of law in both cases, as well as for a new trial and for a new trial

nisi remittitur in both cases. The district court denied Appellants’

post-trial motions. They now appeal the denial of their motions for

judgment as a matter of law and for a new trial. In addition, Appellants except to the compensatory damages awarded in both cases as

excessive. Finally, Appellants argue that the district court committed

reversible error in admitting Plaintiff’s Exhibit No. 395, a chart that

summarized faculty hiring practices at VSU. On cross-appeal, Saleh

argues that the district court erred in granting summary judgment on

his claims for conspiracy to injure another in his business or profession, and for tortious interference with his alleged contracts. 

II.

In April 1993, the Auditor of Public Accounts of the Commonwealth of Virginia reported to the VSU Board of Visitors (BOV) that

VSU’s finances were in disarray. The BOV elected Moore, then TreaSALEH v. UPADHYAY 9
surer of the Commonwealth of Virginia, to be President of VSU, and

assigned him the task of reforming VSU’s finances. Moore hired

Dawson as University Provost, and appointed Lyons as Dean of

VSU’s School of Agriculture, Science and Technology (AST School).

Moore, Dawson, and Lyons are African-American. 

Shortly after Moore’s election as VSU President, the Virginia General Assembly issued a "restructuring" mandate to all state-sponsored

academic institutions in the Commonwealth. The restructuring process required state-sponsored colleges and universities to eliminate

wasteful expenditures of taxpayer money. 

As part of the state mandated restructuring process, VSU implemented a new faculty evaluation process known as "pay for performance" to establish faculty members’ annual raises. Under the pay for

performance guidelines, VSU faculty are rated in three categories:

teaching, research, and service to VSU. Faculty are rated either "unsatisfactory," "satisfactory," "noteworthy," or "outstanding" in each

category. Until 1998, the department chair averaged these ratings into

an overall rating and then recommended a pay raise from an increment range prescribed by the pay for performance guidelines. For

example, in 1995, a faculty member receiving an overall rating of

"satisfactory" could receive a raise of between one and one-half and

two percent, at the discretion of the department chair. In 1998, the

system was changed so that all persons receiving the same overall rating received the same pay raise. 

A.

Saleh was born in Egypt in 1949 and moved to the United States

in 1976. He is of North African racial and ethnic origin. Before working at VSU, Saleh was a tenured professor and the Director of the

Center for Energy and Environmental Studies at Southern University

in Baton Rouge, Louisiana. In 1989, VSU president Dr. Wesley

McClure invited Saleh to VSU to establish a similar center there.

Saleh accepted a tenured position as an associate professor in VSU’s

Department of Agriculture; however, Saleh was not required to teach

classes, since his planned role at VSU was to establish a research

facility. 

10 SALEH v. UPADHYAY
Moore reorganized and restructured VSU, among other ways, by

eliminating several centers at VSU and by requiring all faculty to

teach. In a letter dated April 6, 1994, Lyons informed Saleh: 

[Y]our new contract will be a full-time teaching appointment within the Department of Engineering Technology [in

the AST School]. There will not be any state funding available to support the Center for Energy and Environmental

Studies, effective May 15, 1994. By a copy of this letter to

Dr. Martha Dawson . . . I am recommending that all of your

new initiatives relate to your area of expertise and be consistent with the goals and objectives of the Department of

Engineering Technology. 

In April 1994, Moore mailed Saleh a contract for the upcoming

1994-95 school year that described Saleh as "Associate, Engineering

Technology." Saleh changed the contract by typing in the words "Professor of Environmental Engineering, Center for Energy and Environmental Studies," and sent the contract to Lyons. By letter dated

December 9, 1994, Lyons provided Saleh with a list of courses he was

expected to teach in Spring 1995, and requested that Saleh contact

Gerald Z. Demers (Demers), the Chair of the Department of Engineering Technology. Saleh testified that he did not receive this letter

until the middle of January 1995. In any event, Saleh did not assume

his teaching load at the start of the spring semester. Dawson wrote

Saleh in February 1995, after the spring term had started, threatening

him with termination if he failed to assume his teaching duties. Saleh

eventually agreed to teach one class for the remainder of the semester.

On July 6, 1995, Saleh and Carey Stronach (Stronach), a white

American Physics professor at VSU, presented a paper entitled "Recent Acts of Racial Discrimination Against White and ForeignNational Faculty and Academic Staff at Virginia State University"

("Recent Acts") at a BOV meeting attended by Moore and Dawson.

The document listed alleged acts of discrimination against white and

foreign-born VSU faculty; almost all were alleged to have been

directed by Dawson and Lyons. The document was unsigned; however, Saleh and Stronach discussed and concurred with its allegations

at the BOV meeting. 

SALEH v. UPADHYAY 11
Approximately fifteen minutes after this presentation, Saleh was

instructed to report to Dawson’s office. Dawson informed Saleh that

she intended to sue him for defamation for the "lies" contained in

"Recent Acts." According to Saleh, she also told him, "you and your

friends are going to be reprimanded, you will never do research

again." 

The presentation of "Recent Acts" was discussed at a July 12, 1995

meeting of the VSU Faculty Council, a body that presents the official

opinion of the faculty on policy matters. A transcript of that meeting

reveals the following discussion: 

Farley: If the name is Salla [sic], I know how Salla got here.

Salla has tenure and nobody knows that the tenure ever went

to the Board of Visitors. We have yet to find it. I was

Interim Dean when he came . . . . And if I go under my bed

in some boxes, I’m going to find a copy of the A21 [personnel action form]. That was not signed by the Vice President

of Academic Affairs, because I keep everything for this kind

of day. 

See but that’s the way he came. He came with his rank and

he came with tenure. He walked in the door with tenure, and

nobody in the Ag department acted on it. And it’s my understanding that as of Monday morning they can find no Board

minutes that said that he was given tenure by the Board of

Visitors. 

Counsel [sic] member: But then he doesn’t have tenure. 

Farley: As far as I’m concerned he doesn’t have tenure. As

far as I’m concerned, he doesn’t have tenure. 

Moore subsequently reported to the BOV that, in his opinion, Saleh

had been hired in a manner inconsistent with VSU policy. The board

determined, however, that Saleh had tenure. Moore purportedly told

Saleh in December 1995, "you make me work hard for you, I have

to check your file. You don’t have tenure. And I went to the board

and the board wouldn’t let me take your tenure." 

12 SALEH v. UPADHYAY
Saleh testified that in October 1995 he entered into a consulting

contract with Resources Group of Virginia (RGV), an agricultural

business venture, although no contract was ever produced at trial.

Raymond Golden, who formed RGV, testified that financial support

for the project was contingent on his ability to obtain technical assistance from VSU’s Cooperative Extension Service, headed by Richard

Booker. Golden testified that Booker told him over the telephone that

the Extension Service could not work with RGV "because Dr. Saleh

and Eddie Moore had a problem," and told him in person that "Eddie

Moore didn’t like Dr. Saleh and he could not work with me." Booker

denied making these statements, however. Another witness, Bernard

Jones, testified that, in the fall of 1995, Booker "said that I was going

to find myself in trouble hanging out with Dr. Saleh." In any event,

the RGV project never materialized. 

In late October 1995, Demers evaluated Saleh’s performance for

the period beginning January 1, 1995 and ending August 30, 1995.

Demers gave Saleh an overall rating of "unsatisfactory" and recommended no raise, citing Saleh’s failure to assume his teaching responsibilities at the beginning of the semester. Saleh objected to this

evaluation, arguing that his failure to assume his teaching responsibilities was due to the confusion resulting from his transfer to the

Department of Engineering Technology. At Dawson’s direction,

Demers changed the rating to "satisfactory," and recommended a one

and one-half percent raise. Saleh continued to object to this evaluation, arguing he merited an overall rating of at least "noteworthy."

Demers refused to change the rating further, and explained this

refusal by telling Saleh that he perceived an "aura" surrounding Saleh.

This "aura," Demers acknowledged at trial, stemmed from the fact

that Lyons and Dawson were unhappy with Saleh. 

There was evidence that Demers felt Saleh was not at fault for failing to assume a teaching load. In a letter to Lyons dated November

15, 1995, Demers wrote, 

Dr. Saleh, according to documentation I have, was officially

assigned to this department in February 1995. All other

information to the contrary was verbal and subject to much

on-going discussion and controversy between Dr. Saleh and

the administration. 

SALEH v. UPADHYAY 13
In the same letter, Demers reflected on his qualification to complete

the 1995 evaluation of Saleh. He wrote: "I was placed in a position

of rating a faculty member while probably being the least informed

person to do so. That makes me very uncomfortable!" There was evidence that Demers felt constrained by Lyons and Dawson from giving

Saleh an overall rating higher than "satisfactory," as he wrote to Saleh

on this subject, "I’m damned if I do and I’m damned if I don’t! . . .

From where I sit, it’s a no win situation for me . . . ." 

In December 1995, Saleh presented a research proposal that provided for a program through which high school students would study

engineering at VSU during the summer. Lyons rejected this proposal

on the ground that it would compete with a similar program already

underway. 

In May 1996, Saleh submitted a "Departmental Request for Personnel Action" form, or "A21," requesting $19,750.00 in compensation

for summer employment on a grant project. Lyons determined that the

compensation requested exceeded that authorized by VSU policies,

and unilaterally reduced the compensation requested to $13,520.00

before approving the form. When he received a check for the smaller

amount, Saleh complained to Lyons, who referred the matter to

Moore. Moore instructed VSU internal auditor Jack Spooner to conduct an investigation and prepare a report of his findings. Based on

his own review of applicable university, state, and federal policies,

Spooner concluded that Saleh had been overpaid for summer work in

the amount of $5,794.00, and that Saleh had committed a fraud by

failing to report the overpayment. Spooner also concluded that six

other faculty members had received overpayments in the 1995-96

academic year. Moore reported Saleh’s alleged fraud to state law

enforcement officials and subsequently wrote Saleh to demand repayment of the $5,794.00 overage. No other faculty member identified

by Spooner as having received an overpayment was reported to state

police or asked by Moore to repay any money to VSU. 

In September 1996, Saleh presented to Demers and Lyons a

research grant proposal relating to a Natural Resources Research

Institute (NRRI) project funded by the United States Agriculture

Department (USDA). Lyons rejected this proposal on the ground that

14 SALEH v. UPADHYAY
projects related to Agriculture could not be conducted in the Engineering Technology Department. 

In November 1996, Demers rated Saleh for the 1995-96 academic

year, awarding an overall rating of "satisfactory" and recommending

a two percent raise, which was approved by Lyons. Saleh’s was the

lowest raise in his department. When Demers was asked at trial

whether the "aura" he had referred to had disappeared when it came

time to complete the 1996 evaluations, Demers answered, "not that I

could tell." 

In November 1997, Saleh was evaluated by Demers’ replacement,

Kenneth Burbank (Burbank), for the 1996-97 academic year. Burbank

gave Saleh an overall rating of "satisfactory" and recommended a

raise of three percent, which was approved by Lyons. This raise was

also the lowest in the department. On the evaluation form, Burbank

commented, 

Dr. Saleh is a "square peg in a round hole." He is very talented and has great energy. However, his expertise and

interest lie outside the goals and objectives of this Dept. His

strained personal relationships with some of the people on

campus limited his effectiveness to teach and to complete

tasks. 

Saleh asserts that, when he met with Burbank to object to this evaluation and corresponding raise, Burbank told him, "off the record . . .

you need to get a job somewhere else. It’s not worth it . . . you know

you have sued the administration . . . . They hate you. You are a thorn

in Dr. Lyon’s side." 

In 1998, Saleh received an overall rating of "satisfactory" and the

fixed raise for that rating. This was also the lowest raise given in the

department. 

B.

Mbagwu was born in Nigeria in 1936 and came to the United

States in 1977 to study chemistry at VSU. He is of African descent.

SALEH v. UPADHYAY 15
Epps, Chair of VSU’s Chemistry Department, hired Mbagwu as a

chemistry instructor in 1981. Epps is African-American. Mbagwu

attained tenure as a full professor at VSU in 1995. He is wellrespected in his field for his prodigious accomplishments in the field

of cancer research. 

At trial, Mbagwu endeavored to convince the jury that the orders

to discriminate against white and foreign-born faculty at VSU were

part of Moore’s "vision" for VSU. Mbagwu presented evidence that

Moore and Farley harbored a discriminatory animus towards white

and foreign-born VSU faculty. Several witnesses testified that they

heard Moore and Farley make discriminatory remarks about white

and foreign born faculty. Dr. Jean Cobbs (Cobbs), a former chair of

the Sociology Department, testified that Moore told her after he was

elected VSU president that "there were too many foreigners in Life

Sciences, and he planned to do something about that." Cobbs also testified that at a BOV meeting she overheard Farley refer to another

board member as "that white bitch." Stronach testified that he heard

Farley refer to a foreign-born VSU professor as "some of that African

trash that Benepal [another department chair] brought over here."

Another witness testified that Farley referred to Saleh as "that Egyptian that McClure brought here." Saleh and Florence Siddiqi, the wife

of Dr. Shaukat Siddiqi (Siddiqi), a Life Sciences professor and former

plaintiff in this lawsuit, both testified about a conversation between

Moore and Mary Usry (Usry), a BOV member, at a Christmas party

at Saleh’s house. Usry had written to Moore requesting information

related to various administrative actions during his tenure as president. According to Saleh and Mrs. Siddiqi, Usry reported at the party

that Moore had told her he "had a problem with the number of foreign

faculty at Virginia State" because foreign faculty "could not relate

with our students." 

There was also evidence that Moore desired to appease Farley, who

was a former dean, department chair, and mayor of Petersburg. Siddiqi testified that Moore told him and his wife over dinner that he

"knows Dr. Farley, and he will do anything for her not to destroy his

presidency as she did several other[s] before him." According to Mrs.

Siddiqi, Moore stated he had heard that Dr. Farley "had been instrumental in other presidential administrations failing and . . . [that]

[h]e’d be damned if she would do it to him or his administration." 

16 SALEH v. UPADHYAY
When Moore arrived at VSU in 1993, Mbagwu was designing a

grant proposal in the field of cancer research, to be funded by the

National Institute of Health (NIH). The proposal included extra compensation in the amount of $3,541.00, to be split between Mbagwu

and another faculty member for their work on the grant. The proposal

was due at the NIH office in Bethesda, Maryland by 5:00 p.m. on

October 1, 1993. Mbagwu delivered the proposal to the VSU Office

of Grants and Contracts around the middle of September 1993. On

Monday, September 27, the Director of that office, George Byrd, told

Mbagwu that Moore would not sign the proposal because of the extra

compensation included. Moore did not meet with Mbagwu to discuss

the proposal until noon on October 1, 1993, and this meeting lasted

almost three hours. Finally, Moore signed the grant proposal, backdating his signature to September 29, 1993. Mbagwu drove the documents to Bethesda, but was unable to reach the NIH office before it

closed. The proposal was not accepted. 

Also in the fall of 1993, Mbagwu applied for a position advertised

by the VSU administration as "Associate Dean of Science and Technology." A search committee interviewed applicants for the position

and selected Mbagwu and Stronach as the most qualified candidates.

After the committee informed Lyons of its recommendations, however, he announced that there was no longer funding available for the

position. Lyons then requested permission from Dawson to appoint

Physics Professor Dr. James Davenport, who is African-American, to

the position of "Assistant to the Dean" of the AST School. Davenport

worked one semester in this capacity without compensation. However, he received twenty-five percent release time the following

semester, and eventually received a twelve month contract at this

position. 

In December 1994, Epps and Lyons nominated Mbagwu for the

"Giants in Science Award" for the 1994-95 academic year; Mbagwu

later was selected as the recipient of the award. In November 1995,

Epps, Lyons, Dawson, and President Moore nominated Mbagwu for

the Virginia Council of Higher Education’s Outstanding Faculty

Award for the 1995-96 academic year; Mbagwu was selected as the

recipient of this award as well. 

SALEH v. UPADHYAY 17
The two other professors in the VSU Chemistry Department, Drs.

Beck and Foster, both were born in the United States.3 In October

1995, Epps evaluated Mbagwu for the period beginning January 1,

1995 and ending August 30, 1995. Epps gave Mbagwu a "noteworthy" in teaching, an "outstanding" in research, and a "noteworthy" in

service, resulting in an overall rating of "noteworthy," and a recommended raise of two and one-half percent, which was approved by

Lyons. Professor Foster also received an overall rating of "noteworthy" and a raise of two and one-half percent. Professor Beck, however, received an overall rating of "outstanding" and a three and eighttenths percent raise. Epps commented on Mbagwu’s evaluation form

that Mbagwu did not receive an overall rating of "outstanding"

because he "is often away from campus [and] often attends class late."

In November 1996, Epps rated Mbagwu for the 1995-96 academic

year, awarding him a "satisfactory" in teaching, a "noteworthy" in

research, and an "outstanding" in service. Epps gave Mbagwu an

overall rating of "noteworthy" and recommended a four percent raise,

which was approved by Lyons. For the same evaluation period, Foster

received an overall rating of "noteworthy," with a five and one-half

percent raise, and Beck received an overall rating of "outstanding,"

with a six percent raise. Again, Epps complained that Mbagwu failed

to start his classes on time. When Mbagwu confronted Epps about his

evaluation and raise, however, Epps asked Mbagwu, "why should

[you] expect to receive outstanding in teaching when [you] have poor

oral communication skills . . . students and colleagues in the chemistry department [have] difficulty understanding [your] English."

Mbagwu immediately accused Epps of discrimination and demanded

an apology. Epps responded that he was sorry if Mbagwu took

offense at his comment. 

In November 1997, Epps evaluated Mbagwu for the 1996-97 academic year. Epps gave Mbagwu a "noteworthy" in teaching, an "outstanding" in research, and a "noteworthy" in service. Epps awarded

Mbagwu an overall rating of "noteworthy" and recommended a five

3

In fact, there are three other professors in the VSU Chemistry Department, including Epps. Mbagwu compares himself to Foster and Beck

because Epps evaluated them as well as Mbagwu. Epps, however, was

evaluated by Lyons. 

18 SALEH v. UPADHYAY
percent raise, which was approved by Lyons. For the same evaluation

period, Foster received an overall rating of "noteworthy," with a four

and nine-tenths percent raise, and Beck received an overall rating of

"noteworthy," with a five and one-tenth percent raise. In 1998,

Mbagwu received an overall rating of "noteworthy" and the fixed

raise for that rating; Foster received the same rating; Beck’s 1998

evaluation is not part of the record. 

III.

Appellants challenge the district court’s denial of their Rule 50(b)

motion for judgment as a matter of law and alternative motions for

a new trial as to Saleh’s retaliation claim and as to Mbagwu’s national

origin discrimination claim. We review a district court’s denial of a

Rule 50(b) motion for judgment as a matter of law de novo. Konkel

v. Bob Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir. 1999). A Rule

50(b) motion should be granted if the district court determines that

there is no legally sufficient evidentiary basis for a reasonable jury to

find for the non-moving party. Id.; Cline v. Wal-Mart Stores, Inc., 144

F.3d 294, 301 (4th Cir. 1998). In making our own determination

whether there was sufficient evidence for the jury verdict, we will not

set aside the jury’s credibility determinations in favor of our own.

Cline, 144 F.3d at 301 (citing Duke v. Uniroyal, Inc., 928 F.2d 1413,

1419 (4th Cir. 1991)). We will assume that all testimony in favor of

the non-movant is credible "unless totally incredible on its face." Id.

After a full trial on the merits, our "sole focus is ‘discrimination vel

non’—that is, whether in light of the applicable standard of review the

jury’s finding of unlawful retaliation [or discrimination] is supportable." Id. at 301 (citing Jiminez v. Mary Washington College, 57 F.3d

369, 376 (4th Cir. 1995)). "[O]ur review is circumscribed with respect

to any facts the jury found, but plenary with respect to any legal conclusions underlying the verdict." Price v. City of Charlotte, 93 F.3d

1241, 1249 (4th Cir. 1996). 

A.

Saleh alleges that Moore, Dawson, and Lyons deprived him of his

First Amendment rights by retaliating against him after he presented

"Recent Acts" at the BOV meeting on July 6, 1995. To prevail on this

SALEH v. UPADHYAY 19
claim, Saleh "must first show that the expressions which are alleged

to have provoked the retaliatory action relate to matters of public concern." Huang v. Board of Governors, 902 F. 2d 1134, 1140 (4th Cir.

1990) (citing Connick v. Myers, 461 U.S. 138, 146 (1983)). Second,

Saleh must show that the alleged retaliatory action deprived him of

some valuable benefit. Id. (citing Perry v. Sindermann, 408 U.S. 593,

597 (1972)). That is, Saleh must show that the employment actions

directed toward him were sufficiently adverse to chill a reasonable

person’s willingness to exercise his First Amendment rights. ACLU

of Md. v. Wicomico County, 999 F.2d 780 (4th Cir. 1993) (citing

Perry, 408 U.S. at 597). Third, Saleh must demonstrate a causal connection between the presentation of "Recent Acts" and the alleged

retaliatory acts. Huang, 902 F.2d at 1140. 

In order to determine whether Saleh was speaking on a matter of

public concern when he presented "Recent Acts" to the BOV, we

inquire whether Saleh was speaking as a private citizen on a matter

of public concern, or as an employee on a matter of personal concern.

Edwards v. City of Goldsboro, 178 F.3d 231, 246 (4th Cir. 1999) (citing Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)). We have

explained that the answer to this inquiry "rests on ‘whether the public

or the community is likely to be concerned with or interested in the

particular expression, or whether it is more properly viewed as a private matter between employer and employee.’" Id. at 247. Finally,

"[w]hether an employee’s speech addresses a matter of public concern

must be determined by the content, form and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S.

138, 147 (1983) (citations omitted). While it is clear that personal

interest motivated Saleh in part to present "Recent Acts," we are convinced that a presentation to the Board of Visitors of a state university

alleging a campus-wide campaign of racial discrimination in administrative and employment decisions qualifies as a matter of public concern. Appellants agree with this determination for the purposes of this

appeal. They contend, however, that Saleh is unable to meet his burden as to the remaining two elements. 

With regard to the second element of the Huang test, we have held

that "a showing of adversity is essential to any retaliation claim."

ACLU of Md., 999 F.2d at 784. We have defined the requisite adversity as "some impairment of the plaintiff’s rights," id., and have not

20 SALEH v. UPADHYAY
endeavored to provide an exhaustive list of sufficiently adverse

actions in the context of retaliation for the exercise of First Amendment rights. Of course, "[n]ot every restriction is sufficient to chill the

exercise of First Amendment rights[.]" Dimeglio v. Haines, 45 F.3d

790, 806 (4th Cir. 1995). We note, however, that something less onerous than an "adverse employment action" in the context of Title VII

jurisprudence may so chill the exercise of constitutional rights as to

constitute a showing of adversity in a First Amendment retaliation

case under § 1983. See, e.g., Power v. Summers, 226 F.3d 815 (7th

Cir. 2000). The dispositive inquiry is whether the adverse actions

complained of, under the particular circumstances of the case, would

deter the employee from again exercising his constitutional right to

publicly comment on matters of public concern. ACLU of Md., 999

F.2d at 784. 

As to the third element of the Huang test, we noted then that "the

causation requirement is rigorous; it is not enough that the protected

expression played a role or was a motivating factor in the retaliation;

claimant must show that ‘but for’ the protected expression the

employer would not have taken the alleged retaliatory action." Huang,

902 F.2d at 1140. We now address Saleh’s specific allegations of

retaliation. 

TENURE

In Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999), we

held that "a public employer is prohibited from threatening to discharge a public employee in an effort to chill that employee’s rights

under the First Amendment." Id. at 246 (citing Rankin v. McPherson,

483 U.S. 378, 384 (1987)). The question presented is whether this

proscription extends to prevent a public employer from threatening to

remove a public employee’s tenure in an effort to chill the employee’s

First Amendment rights. We hold that it does. 

Edwards and Rankin are rooted in the premise that "the threat of

dismissal from public employment is a potent means of inhibiting

speech." Pickering v. Board of Educ., 391 U.S. 563, 574 (1968). A

threat to remove one’s tenure, however, is tantamount to a threat of

dismissal. Since tenure prevents a professor from receiving a terminal

employment contract, the revocation of tenure would be, in most conSALEH v. UPADHYAY 21
ceivable scenarios, the precursor to a terminal employment contract.

Saleh became aware of this threat when Moore told him, "[y]ou make

me work hard for you, I have to check your file. You don’t have tenure. And I went to the board and the board wouldn’t let me take your

tenure." This statement, combined with the inquiry into Saleh’s tenure

conducted by Moore and Farley, amounted to an adverse action sufficient to chill the exercise of Saleh’s First Amendment rights. 

As to the element of causation, the temporal proximity between

Saleh’s presentation of "Recent Acts" and the inquiries into his tenure

made by Moore and Farley supports the inference that Moore and

Farley instigated a challenge to Saleh’s tenure in response to protected activity. See, e.g., Williams v. Cerberonics, Inc., 871 F.2d 452,

457 (4th Cir. 1989). Board member Garland Bigley testified that at a

BOV meeting Moore reported that his review of the "minutes of the

meetings of that time period" did not reveal a BOV vote approving

tenure for Saleh. Bigley testified that it was "implicit" in Moore’s

comments "that the minutes had been reviewed to find that." Farley

indicated in her comments to the Faculty Council that "we have yet

to find [the record of Saleh’s tenure approval by the BOV]." Most significantly, Farley stated in her pretrial deposition, which was taken

before the tape of the Faculty Council Meeting was produced, she was

aware that Stronach was involved with the presentation of "Recent

Acts," but had never heard Saleh’s name in connection with the document. When confronted at trial with her remarks to the Faculty Council, Farley admitted that she had testified incorrectly at her deposition,

blaming the discrepancy on a lapse or memory. Apparently, the jury,

which asked to hear the tape again during its deliberations, discredited

this explanation. It is the function of the jury to assess the credibility

of witnesses at trial. Based on our review of the record, we cannot say

that no reasonable jury could have concluded that Farley and Moore

threatened to revoke Saleh’s tenure in retaliation for his exercising his

First Amendment rights. 

EVALUATIONS

As discussed previously, Saleh received the lowest raises in his

department for the years 1996, 1997, and 1998. In Rutan v. Republican Party of Ill., 497 U.S. 62, 75-76 (1990), the Supreme Court recognized that a failure to rehire, a denial of a promotion, or a denial

22 SALEH v. UPADHYAY
of a transfer may constitute a deprivation of a valuable benefit. In so

holding, the Court noted that public employees who are denied a promotion "stand to lose the considerable increases in pay and job satisfaction attendant to promotions[.]" Id. at 74. Similarly, in this case,

Saleh allegedly lost considerable increases in pay because of Appellants’ acts. Saleh’s economic expert calculated Saleh’s lost earnings

as between $56,767.00 and $113,075.00. The reduction of Saleh’s

raises for three years in a row constitutes an adverse employment

action that may be expected to chill an employee’s First Amendment

rights. 

As to the issue of causation, there was ample evidence from which

the jury could infer that Saleh’s evaluations remained low at the

direction of Lyons and with the implied consent of Dawson. As noted,

in 1995, Demers commented to Saleh that he perceived an "aura" surrounding him. At trial Demers stated that the "aura" stemmed from

the fact that Dawson and Lyons were unhappy with Saleh. The "aura,"

Demers testified, was still there in 1996. In 1997, Dr. Burbank allegedly told Dr. Saleh more bluntly, "[t]hey hate you. You are a thorn

in Dr. Lyon’s side." A reasonable jury could find that Lyons and

Dawson ensured lower annual raises for Saleh in retaliation for

Saleh’s personally accusing them of racial discrimination with the

presentation of "Recent Acts." 

SUMMER PAY

After an investigation ordered by Moore revealed that at least six

faculty members, including Saleh, had been overpaid, Moore asked

only Saleh to repay $5,794.00 to VSU, and reported only Saleh to law

enforcement authorities as a fraud suspect. Moore presented no evidence to justify the decision to single out Saleh for this treatment. Nor

did Moore present any evidence that the auditor’s interpretation of the

relevant laws was the authoritative, or even correct, interpretation. To

the contrary, BOV member Bigley testified that Moore had "skillfully

avoided" answering her questions to this effect for "nearly two years."

Under these circumstances, Moore’s actions constitute an adverse

action such as may be expected to chill the First Amendment rights

of a public employee. See also Hetzel v. County of Prince William,

89 F.3d 169, 171 (4th Cir. 1996) (Internal Affairs investigation of

plaintiff police officer was sufficiently adverse action to constitute

SALEH v. UPADHYAY 23
deprivation of a valuable benefit in First Amendment retaliation context). 

Further, we find that there was sufficient evidence presented to the

jury on the issue of causation from which to infer that Saleh was singled out in retaliation for his presentation of "Recent Acts." While

almost a year elapsed between the presentation of "Recent Acts" and

the summer pay incident, this fact alone is not fatal to Saleh’s claim.

But see Dowe v. Total Action Against Poverty in Roanoke, 145 F.3d

653, 656 (4th Cir. 1998) (finding three year time lapse between protected activity and alleged retaliation negates inference of causation).

The inference of causation is not negated where, as here, the alleged

retaliatory act was one of a set of similar acts occurring simultaneously or consecutively over the course of several years. In this case,

evidence was presented that Moore and Farley attempted to remove

Saleh’s tenure in 1995; that Lyons and Dawson ensured that Saleh

received lower raises in 1995, 1996, and 1997; that Saleh was singled

out for repayment of an alleged overpayment in summer 1996; and

that Saleh was reported to state police as a fraud suspect in summer

1996. We find that a reasonable jury could find that this conduct was

undertaken in retaliation for Saleh’s protected activity a year earlier.

For the foregoing reasons, we find that Saleh presented sufficient

evidence from which a jury reasonably could infer that Moore, Dawson, Lyons and Farley retaliated against him for the presentation of

"Recent Acts." Accordingly, we affirm the district court’s denial of

Appellants’ motion for judgment as a matter of law as to this issue.4

4We note that Lyons’ rejection of Saleh’s research proposals does not

constitute the kind of adverse action that would chill the reasonable person’s exercise of his First Amendment rights. These were simply administrative decisions, best made by Lyons, and not a federal court. See

Dorsett v. Board of Tr. for State Coll. & Un., 940 F.2d 121, 124 (5th Cir.

1991) (noting that federal courts "have neither the competency nor the

resources to undertake to micromanage the administration of thousands

of state educational institutions") (citing Clark v. Whiting, 607 F.2d 634,

640 (4th Cir. 1979)). Moreover, as to the NRRI project, Lyons had

informed Saleh in April 1994 that he was "recommending that all of your

new initiatives relate to your area of expertise and be consistent with the

goals and objectives of the Department of Engineering Technology."

24 SALEH v. UPADHYAY
B.

To establish a prima facie case of discriminatory compensation on

the basis of his national origin, Mbagwu was required to demonstrate

that, as a member of a protected class, he was paid less than a

similarly-situated employee who is not a member of a protected class.

See, e.g. Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 343

(4th Cir. 1994). As discussed, Mbagwu demonstrated that he received

lower raises in 1995, 1996, and 1997 than Professor Beck, who was

born in the United States, and a lower raise in 1996 than Dr. Foster,

who also was born in the United States. Therefore, under the burdenshifting framework first articulated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-805 (1973), Appellants were required to

offer a legitimate, non-discriminatory justification for Mbagwu’s

lower annual raises. Appellants met this burden of production by stating that Mbagwu received lower raises because he was late to class,

and because students allegedly had difficulty understanding his

accent. At that point, "the McDonnell Douglas framework . . . disappeared . . . and the sole remaining issue was discrimination vel non."

Reeves v. Sanderson Plumbing Prod., Inc., 120 S. Ct. 2097, 2106

(2000) (internal citations omitted). 

Therefore, Lyons made the decision that agricultural grants could not be

operated out of the Engineering Department over a year before the presentation of "Recent Acts." Therefore, Saleh failed to demonstrate the

requisite causal connection between Lyon’s decision and Saleh’s exercise of his First Amendment rights. 

Nor has Saleh presented sufficient evidence from which a jury reasonably could find that Appellants retaliated against him by interfering with

his alleged consulting contract with RGV. Even assuming such a contract

existed, and assuming that interference with this contract could constitute

an adverse employment action, there is insufficient evidence in the

record to establish that any defendant caused the RGV project to fail.

The only testimony on this issue was that Richard Booker told Raymond

Golden on two instances that Moore had a problem with Saleh, and told

another witness that he would find himself in trouble hanging around

Saleh. There was no evidence, however, that Moore told Booker that the

project would not be allowed because Saleh was involved with the project as a consultant. Therefore, the jury could have reached this conclusion only by conjecture and speculation. 

SALEH v. UPADHYAY 25
Mbagwu introduced Ron Mollick (Mollick) as an expert on faculty

evaluation systems. Mollick testified that the VSU pay for performance system lacked necessary features, such as in-class observation

of teaching and student evaluations of teaching, that would make the

system more objective. Mollick explained to the jury that, for the

years 1995, 1996 and 1997, there was a range within which all faculty

members receiving the same overall rating could fall in terms of their

annual raise; yet there were no criteria to establish why one professor

received an overall rating of satisfactory and a given raise, while

another professor received an overall rating of satisfactory and a

lower or higher raise.5 The combination of these features, Mollick

opined, created a system left "wide open to subjective determinations,

wide open to the possibility of abuse." Mollick’s testimony went

unrebutted. Indeed, Appellants concede in their brief that the pay for

performance system "began as a subjective system open to the possibility of abuse." App. Br. at p. 18. 

We cannot say that the evidence would not allow a reasonable jury

to conclude that Appellants’ proffered reasons for Mbagwu’s low

evaluations and annual raises were pretextual. Under Reeves,

Mbagwu was not required to present affirmative evidence of Appellants’ discriminatory intent. Reeves, 120 S. Ct. at 2108. Rather, "[i]n

appropriate circumstances, the trier of fact can reasonably infer from

the falsity of the explanation that the employer is dissembling to

cover up a discriminatory purpose." Id. 

At trial, Appellants’ proffered legitimate, non-discriminatory reasons for Mbagwu’s lower evaluations and raises were inconsistent

with their assessment of Mbagwu’s performance in light of the fact

that they nominated him for the "Giants in Science" and SCHEV

awards. For example, in October 1995, Epps gave Mbagwu an overall

rating of "noteworthy," and recommended a two and one-half percent

raise, commenting on Mbagwu’s evaluation form that he "is often

away from campus, often attends class late, and does not appear to

use time wisely." Just a few days later, Dawson commended Mbagwu

in the Outstanding Faculty Award nomination materials for his "con5

In 1996, both Mbagwu and Dr. Foster received an overall rating of

noteworthy. Yet, Dr. Foster received a five and one-half percent raise,

while Mbagwu received only a four percent raise. 

26 SALEH v. UPADHYAY
sistent excellence in teaching, scholarship and service." In the same

materials, Lyons wrote, "Dr. Mbagwu is an outstanding teacher and

researcher at Virginia State University. He is highly respected by his

peers and viewed as a positive role model by his students." 

Later in 1996, after Mbagwu received the Outstanding Faculty

Award, the BOV presented Mbagwu with a resolution commending

him for his "excellence in teaching, research, and public service," and

recognizing Mbagwu as an "outstanding teacher and researcher

among his peers . . . ." However, in his evaluation of Mbagwu in

November 1996, Epps gave Mbagwu an overall rating of "noteworthy," and the lowest raise in the department. 

In addition, when Mbagwu complained to Epps about his 1996

evaluation and raise, Epps did not reiterate his written comments

about lateness, but responded, "Why should [you] expect to receive

outstanding in teaching when [you] have poor oral communication

skills . . . students and colleagues in the chemistry department [have]

difficulty understanding [your] English." We have held that "requiring

a professor to speak the native tongue in order to convey his ideas is

not any form of discrimination, invidious or otherwise." Jiminez v.

Mary Washington College, 57 F.3d 369, 380 (4th Cir. 1995), and we

affirm this proposition. However, the jury was not prohibited from

considering Epps’ comment in addition to other evidence of discriminatory animus. Epps had not discussed Mbagwu’s accent with him in

fifteen years as his supervisor. We cannot say that a jury could not

reasonably have viewed this comment as a manifestation of a discriminatory animus toward foreign faculty. 

Where, as in Mbagwu’s case, the ultimate issue of discrimination

vel non is "a close one, involving the sufficiency of circumstantial

evidence and rational inferences to be drawn therefrom," we are

"mindful of the Seventh Amendment’s commission of factual questions to the jury and of our limited role of review." Johnson v. Hugo’s

Skateway, 974 F.2d 1408, 1420 (4th Cir. 1992). In light of (1) the evidence tending to demonstrate that Moore "had a problem" with foreign faculty; (2) the subjective system for faculty evaluations; (3) the

apparent inconsistency between Mbagwu’s low evaluations and the

praise he received from the administration; and (4) Epps’ comment

concerning Mbagwu’s accent, we conclude that there was sufficient

SALEH v. UPADHYAY 27
evidence to support the jury’s verdict as to Moore, Dawson, Lyons,

and Epps. 

We continue to "review professorial employment decisions with

great trepidation." Jiminez, 57 F.3d at 376. We will not "substitute

[our] judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure." Id. (quoting

Kunda v. Muhlenberg College, 621 F.2d 532, 548 (3d Cir. 1980)).

However, in Jiminez we held that "[d]eterminations about such matters as teaching ability, research scholarship, and professional stature

are subjective, and unless they can be shown to have been used as the

mechanism to obscure discrimination, they must be left for evaluation

by the professional." Id. at 377. In this case, Mbagwu presented sufficient evidence from which the jury could infer that the VSU pay for

performance system was used by Epps, Lyons, Dawson, and Moore

as a "mechanism to obscure discrimination." 

IV.

Appellants also challenge the district court’s denial of their alternative motions for a new trial pursuant to Fed. R. Civ. P. 59(a). A new

trial should be granted if "(1) the verdict is against the clear weight

of the evidence, or (2) is based upon evidence which is false, or (3)

will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict."

Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d

587, 594 (4th Cir. 1996). The decision to grant or deny a new trial is

in the sound discretion of the trial court, and is reviewed only for an

abuse of that discretion. Id. 

For the reasons previously discussed, we find that the verdict was

not against the clear weight of the evidence. Nor is any demonstrably

false evidence called to our attention. We cannot say that a miscarriage of justice occurred in this case. We agree with the district court

that Appellees presented enough evidence to submit their retaliation

and discrimination claims to a jury. Although on review of the denial

of a new trial motion we are permitted to weigh the evidence and

assess the credibility of witnesses, we are persuaded that the jury’s

credibility determinations should be left undisturbed. Accordingly, we

28 SALEH v. UPADHYAY
affirm the district court’s refusal to grant a new trial in either Saleh’s

or Mbagwu’s case. 

V.

Appellants also challenge the trial court’s denial of their motions

for a new trial and for a new trial nisi remittitur in both cases on the

grounds that the damages awards are excessive. Whether a jury award

is excessive is a question of law. Konkel v. Bob Evans Farms, Inc.,

165 F.3d 275, 280 (4th Cir. 1999) (citing Gasperini v. Center for

Humanities, Inc., 518 U.S. 415, 438-39 (1996)). The district court’s

decision whether or not to grant a new trial based upon an allegedly

excessive verdict will not be disturbed on appeal absent an abuse of

discretion. A damages award will be set aside only if it is "‘against

the clear weight of the evidence, or is based upon evidence which is

false, or will result in a miscarriage of justice.’" Johnson v. Hugo’s

Skateway, 974 F.2d 1408, 1414 (4th Cir. 1992) (quoting Johnson v.

Parrish, 827 F.2d 988, 991 (4th Cir. 1987)). If we find that the jury’s

award of compensatory damages was excessive, we have the option

of ordering a new trial, or granting the plaintiff a new trial nisi remittitur. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305 (4th Cir.

1998). 

An award of compensatory damages under § 1983 "must be proportional to the actual injury incurred . . . ." Price v. City of Charlotte,

89 F.3d 169, 172 (4th Cir. 1996) (quoting Piver v. Pender County Bd.

of Educ., 835 F.2d 1076, 1082 (4th Cir. 1987), cert. denied, 487 U.S.

1206 (1988)). Compensatory damages for emotional distress must be

proven by competent, sufficient evidence. Id. (citing Carey v. Piphus,

435 U.S. 247, 263 (1978)). Further, an award of compensatory damages for emotional distress "must be attributed to the invidious discrimination, not to the deprivation of an ultimate benefit." Id. 

A.

The jury awarded Saleh $97,769.00 in compensatory damages.

Appellants argue that, in the event that we affirm the district court’s

denial of their motion for a directed verdict, Saleh is entitled to nominal damages of one dollar. We disagree. 

SALEH v. UPADHYAY 29
There was ample evidence from which the jury could find that

Saleh suffered both economic injury and emotional distress as a result

of the Appellants’ retaliatory actions. Saleh’s economic expert, David

Parcell, opined that Saleh’s lower evaluations deprived him of

between $56,767.00 and $113,075.00. Parcell’s testimony on this

point went unrebutted, and it was for the jury to assess his credibility.

Even if Saleh suffered economic injury at the lowest end of the range

posited by Parcell, we conclude that there was sufficient evidence that

Appellants caused Saleh emotional distress and related health problems to support the remainder of the award. 

Saleh testified as to the effects that Appellants’ retaliatory acts had

on him: 

I was very stressed. I was emotionally and mentally drained.

I have problems sleeping. I was sweating and waking up

every night so many times, I get up in the morning, I can’t

move. I have no energy, continuous fatigue . . . I was

extremely down, discouraged. I feel like I have no hope, no

place. I have been through this so many times, I can’t do

anything to grow in my field. I can’t work in this place. I

don’t know what to do. I was demoralized and my health

was going down. 

In Hetzel v. County of Prince William, 89 F.3d 169 (4th Cir. 1996),

we vacated an award of $500,000.00 for emotional distress allegedly

caused by the defendant’s retaliatory acts where the award was "based

almost entirely on Hetzel’s own self-serving testimony concerning

stress and headaches." Id. at 172. We also noted that Hetzel’s discrimination claims were rejected by the jury, that she was not physically

injured, that she remained an officer in good standing with the defendant, and that she had not sought care from a physician. Saleh’s discrimination claim likewise was rejected by the jury, and he also

remains employed. However, unlike Hetzel, Saleh introduced independent evidence of his emotional distress and related health problems. Dr. Saleh took eight weeks of medical leave in early 1997.

During that leave, Saleh was admitted to a hospital on two occasions,

and treated for hypertension, atrial fibrillation, and diabetes. Saleh’s

treating physician, Dr. Ellenbogen, opined that each of these conditions was exacerbated by Saleh’s stress at work. Dr. Ellenbogen also

30 SALEH v. UPADHYAY
attributed Saleh’s sleeping problems to stress at work. Finally, Hetzel

is distinguishable because as much as half of the $97,769.00 awarded

can be attributed to the economic injuries Saleh suffered because of

his alleged retaliatory low raises. 

In Johnson v. Hugo’s Skateway, we recognized "the difficulty in

measuring the amount appropriate to compensate for the emotional

injuries resulting from [racial discrimination]." 974 F.2d 1408, 1414

(4th Cir. 1992). In Johnson, we upheld a jury award of $25,000.00 to

a victim of racial discrimination where the alleged acts transpired in

one night. As discussed above, in this case, the jury could have found

that Appellants retaliated against Saleh by giving him low annual

raises from 1995 to 1998, by reporting him to state police for suspected fraud in 1996, and by challenging his tenure in 1995. Since the

jury was entitled to find that each of these events caused Saleh emotional distress, we cannot say that the jury award is excessive. 

B.

The jury awarded Mbagwu $194,829.00 in compensatory damages.

Mbagwu’s economic expert, David Parcell, opined that Mbagwu’s

lower evaluations deprived him of $47,667.00. As in Saleh’s case,

this testimony went unrebutted, and Appellants have stated in their

briefs that they do not dispute this figure. App. Reply Brief at 14.

Assuming the jury found this testimony credible, Mbagwu was

awarded approximately $150,000.00 to compensate for emotional distress. We find that this award was against the weight of the evidence.

Mbagwu testified that the discrimination he experienced severely

affected him: 

To say the least, it has been a very devastating experience,

and it has affected my life, my family life, my relationship

with my wife, my children. I feel very sad, very betrayed

very isolated . . . . I feel betrayed because I spent most of

my career and efforts at Virginia State University trying to

help my students. I have worked very hard to help my students. That’s perhaps one of the primary reasons why I

came to Virginia State University. But my effort is not being

appreciated, and I feel betrayed because Dr. Epps and the

SALEH v. UPADHYAY 31
administration . . . had supported me up to 1993. . . . The

stress has led to sleeplessness, insomnia. In the morning I

get up, I feel exhausted and tired. I feel stressed out, but I

still got to go to school because of my students. . . . When

I get to school, I feel ostracized, a sense that I do not belong

to the environment where I have made major contributions

. . . . So I feel betrayed, and sleeplessness, insomnia, you

can’t imagine what insomnia can do to you. It s 24-hour

problem, a 24-hour problem. 

As in Saleh’s case, the jury was entitled to find that Mbagwu was

subjected to emotional distress throughout a period of approximately

four years. Unlike Saleh, however, Mbagwu presented no medical

evidence to corroborate his testimony about the emotional distress he

endured. Moreover, as was true of the plaintiff in Hetzel, Mbagwu

never sought medical or psychological care for his stress and insomnia. A plaintiff’s testimony, standing alone, can support an award of

compensatory damages for emotional distress based on a constitutional violation. See Price v. City of Charlotte, 93 F.3d 1241, 1254

(4th Cir. 1996). However, that testimony must competently demonstrate a "genuine injury." Id. (quoting Carey, 435 U.S. at 264). Mbagwu’s testimony, standing alone, simply does not support an award of

$150,000.00 for emotional distress. On the evidence presented, we

find that $75,000.00 in compensatory damages is the largest award

that could be sustained. We add to this the $47,667.00 in compensatory damages for economic injury, for a total figure of $122,667.00.

Accordingly, we reduce Mbagwu’s compensatory damages award to

$122,667.00 and grant a new trial nisi remittitur at Mbagwu’s option.

VI.

Appellants argue that the district court committed reversible error

by admitting Plaintiff’s Exhibit No. 395. That document is a chart that

was composed by Appellants and produced by them in connection

with a Rule 30(b)(6) deposition of VSU’s Director of Human

Resources. The chart lists several faculty members in VSU’s AST

School, and tells the race, birthplace, time of hiring, reason for selection, and current position of each. Appellants objected to the chart’s

admission on the grounds that its probative value was substantially

outweighed by its potentially prejudicial effect. Fed. R. Evid. 403. 

32 SALEH v. UPADHYAY
Decisions regarding the admissibility of evidence are peculiarly

within the province of the district court, and will not be reversed on

appeal absent an abuse of discretion. Martin v. Deiriggi, 985 F.2d

129, 137 (4th Cir. 1992). We agree with the district court that the

chart’s prejudicial effect did not substantially outweigh its probative

value. The chart’s probative value lay in its tendency to demonstrate

that it was easier for an African-American to find employment at the

AST School than it was for a white American or foreign-born individual. Appellants argue the chart’s potential to confuse the jury was

"manifest" because the jury "did not know the qualifications of the

persons who applied for these positions, did not know whether any of

the applicants withdrew their names from consideration, and did not

know all the factors that went into each hiring decision." App. Br. at

48. However, Appellants were not prohibited from offering this information into evidence in order to negate any inference of discrimination that the chart created. We cannot say that admitting the chart

amounted to an abuse of discretion. 

VII.

On cross-appeal, Saleh argues that the district court erred in granting summary judgment as to his state law claims for conspiracy to

injure another in his business or profession, and for tortious interference with alleged contracts. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we

affirm on the reasoning of the district court. See Saleh v. Moore, No.

CA-97-460 (E.D. Va., Feb. 25, 1999). 

VIII.

Appellants argue that the district court’s award of attorneys’ fees

to Saleh and Mbagwu is excessive. We disagree. We review the

amount of an award of attorney’s fees only for an abuse of discretion.

Brodziak v. Runyon, 145 F.3d 194, 195 (4th Cir. 1998). The district

court abuses its discretion when the fee award is "clearly wrong." Id.

We have reviewed the record and the district court’s opinion, and

find no abuse of discretion. In a thorough and well-reasoned opinion,

the district court arrived at an appropriate award of attorneys’ fees.

SALEH v. UPADHYAY 33
See Saleh v. Moore, 95 F. Supp. 2d 555 (E.D. Va. 2000). The decision

of the district court is affirmed as to this issue. 

AFFIRMED

34 SALEH v. UPADHYAY